The existing legislation means that the onus is on the employer to ensure that their employees remain safe whilst in their employ. Currently an employee may rely upon a breach of health and safety legislation to bring a claim, and obtain compensation for injuries sustained, as their employees have an absolute duty to protect them. However, the new legislation switches the burden of proof completely and in particular, the changes to The Health and Safety at Work Act 1974 mean that the injured employee now has to prove that a system of work is unsafe, or that an act of negligence has taken place.
How will this change in the law help the family of someone killed in a factory accident, for example? How are they supposed to bring a claim, without having the evidence of the person involved in the accident, or no knowledge whatsoever of that employer's working systems?
The Government, in their current drive to tackle what they describe as "compensation culture" have brought about changes which reduce the need for employers to have regular inspections of their premises/working systems/equipment and now, even if health and safety regulations have been breached, that fact alone is not sufficient to prove negligence in a personal injury case. The Conservative Business Minister Jo Swinson said during a Commons debate that "The Government does not believe that it is justifiable to hold employer's liable for incidents outside their control that they could not have reasonably prevented".
Given the forthcoming changes, I had a quick look at the HSE's website last week. What stood out for me was the sheer number of prosecutions brought by them for various breaches of the Health and Safety at Work Act 1974 and the Provision and Use of Work Equipment Regulations 1998 this week alone.
For example, JSF Stainlesss Ltd pleaded guilty to a breach of the Health & Safety at Work Act this week at Walsall Magistrates' Court following an incident in 2011 when a 17 year old worker severed his thumb, part of his little finger, and all of his remaining fingers in a steel cutting saw. The unnamed employee had been asked to clean the machine by the Company Director whilst the blade was in motion. The horrific injuries have resulted in the worker having nine operations so far to re-attach and repair his digits. The HSE found that he had not been properly trained and should never have been instructed to clean a moving machine. The firm was fined £6,000 and ordered to pay £13,000 in costs.
This is just one example of many prosecutions taking place each week due to serious breaches of the legislation that had been, rightly, put into place to protect workers.
Personal injury lawyers fear that the new bill may "dilute" the laws that currently protect our workforce, many of them in the manufacturing sector, and by shifting the burden to the employee to prove negligence, this may result in a reduction in the number of people making claims. Whilst it is true that the new legislation may reduce the number of claims being made, this is not likely to be due to a reduction in accidents occurring within the workplace, but rather because the process of bringing and proving a claim has been made much more difficult for innocent victims.